wilson messo vs julius chiligati 2021 tzhc 9400 15 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA LAND APPEAL NO. 26 OF 2020 (Arising from the Ruling of the District Land and Housing Tribunal for Dodoma at Dodoma Land Application No. 248 of 2019 Dated 29/1/2019) WILSON MESSO........................... APPELLANT VERSUS JULIUS CHILIGATI........................ RESPONDENT 24/11/2021 & 15/12/2021 JUDGMENT MASAJU, J The Appellant, Wilson Messo, sold the land which is subject matter of the dispute for TZS 55,000/= to the Respondent Julius Chiligati, on the 20th day of May 1998. In the year 2016, the Appellant's son, one Elisha Messo successfully sued the Respondent over the ownership of the said suitland before Msanga Ward Tribunal. The Respondent successfully appealed against Elisha Messo to the District Land and Housing Tribunal for Dodoma in Land Appeal No. 153 of 2016 where he was declared the Lawful owner of the suitland. Elisha Messo then appealed against the Respondent in the Court vide Misc. Land Case Appeal No. 1 of 2017 but he withdrew the said appeal from the Court when he was being heard by the Court on the 10th day of April, 2018. i Thereafter, the Appellant who is the biological father of the said Elisha Messo instituted another land dispute Land Application No. 248 of 2019 against the Respondent before the District Land and Housing Tribunal for Dodoma seeking to be declared the lawful owner of the suitland that had been the subject of dispute between his son, Elisha Messo, and the Respondent, the dispute which had been heard and concluded in the Court where the said Elisha Messo withdrew his appeal from the Court on his own volition. The trial tribunal disposed the Land Application No. 248 of 2019 on the preliminary point of law raised by the Respondent that the Application was res judicata, hence this appeal to the Court; " (i) That, the Honourable chairman erred in law and in fact for deciding in favour of the Respondent by stating that the instituted Land Application is Res Judicata while the Land Appeal Case No. 153 of 2016 was decided on land measured three (3) acres. (ii) That, the Honourable chairman erred in law and fact for deciding in favour of the Respondent without considering that the appellant in his previous evidence did not admit that he sold the land measured five(5) acres". By the time the Appeal was heard in the Court on the 24th day of November, 2021 the Respondent, Julius Chiligati had died since the 25th day of July, 2021. His son Zephania Julius Chiligati who has been appointed Administrator of the estate appeared in the Court to contest the appeal. The Appellant didn't contest his appearance. 2 The layman Appellant adopted his grounds of appeal to form his submissions in support of the appeal as he prayed the Court to allow the appeal and set aside the Ruling of the trial tribunal with no order as to costs. The Respondent contested the Application on the two grounds stating that the Land Application No. 248 of 2019 filed by the Appellant before the trial tribunal was res judicata to the land dispute between Elisha Messo, his son, and the Respondent in Msanga Ward Tribunal and the Land appeal No. 153 of 2016 thereof in the District Land and Housing Tribunal for Dodoma on the same subject. That in the Msanga Ward Tribunal, the Appellant was the Respondent's witness on the ownership of the suitland. The Respondent prayed the court to dismiss the appeal for want of merit. The Court is of the considered position that the Land Dispute No. 248 of 2019 before the trial tribunal (the District land and Housing Tribunal for Dodoma) as between the Appellant and the Respondent was Res Judicata to the Land dispute in Msanga Ward Tribunal between the Appellant's son, Elisha Messo and the Respondent, the Land Appeal No. 153 of 2016 before the District Land and Housing Tribunal for Dodoma between the said Elisha Messo and the Respondent and Misc. Land Case Appeal No. 1 of 2017 in the Court between the said Elisha Messo and the Respondent on ownership of one and the same subject matter (the suitland) in terms of section 9 of the Civil Procedure Code, [Cap 33 RE 2019]. That being the case, the trial Tribunal was right to sustain the preliminary point of law that the Appellant's Land Application No. 248 of 2019 before the trial tribunal was a Res judicata case thereby dismissing it accordingly. 3 The appeal is hereby dismissed accordingly for want of merit. The parties shall bear their own costs. GEORGE M. MASAJU JUDGE 15/12/2021 4